FEDERAL COURT OF AUSTRALIA

Oil Basins Limited v Watson [2014] FCAFC 154

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first to the tenth respondents’ costs of the appeal to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal by Oil Basins Limited against costs orders made against it by the primary judge following the decision of Oil Basins in late May 2013, no longer to contest connection issues in proceedings under the Native Title Act 1993 (Cth) (NTA) maintained by the claimants, the Nyikina Mangala people.

2    In 1998, the claimants lodged a claimant application under the NTA for a determination that native title exists in relation to their traditional country in the Kimberley region of Western Australia. The claimant application was placed on the register of native title claims in September 1999.

3    Subsequently the State of Western Australia and others became respondents to the claim.

4    By the end of 2007, the claimants and the State were communicating about the position that the State would adopt in relation to the claim. In that regard, the draft report of an anthropologist engaged by the claimants, Dr Kingsley Palmer, dealing with connection issues, was provided to the State in about December 2007. The claimants then awaited a response from the State as to whether or not connection, for the purposes of s 223 of the NTA, would be put in issue.

5    In early 2009, the State obtained a report from Dr David Martin, another anthropologist (the Martin report), on the connection issues addressed in the draft report of Dr Palmer.

6    In June 2009, Dr Palmer and Dr Martin conferred to discuss connection issues.

7    Oil Basins initially became involved in relation to the area the subject of claim in September 2007, when it and another company jointly applied under the law of Western Australia for the grant of an exploration permit in the northern part of the claim area. In December 2007, they became the preferred applicants for the permit.

8    In January 2008, the State gave notice under s 29 of the NTA in respect of the proposed “future act”, being the proposed grant of the permit.

9    Because of the pending claimant application, between early 2008 and May 2012, Oil Basins conducted negotiations with the claimants under the “right to negotiate” procedures of the NTA, with respect to the future act.

10    In May 2012, Oil Basins applied to the National Native Title Tribunal (NNTT), under the NTA, for a determination that the permit be granted in light of a breakdown in negotiations (the future act proceedings).

11    In October 2012, this Court made programming orders in relation to the conduct of the claimant application, listing the hearing of the claim to commence, on country, on 2 July 2013.

12    In October 2012, the Court also ordered that the claimant application be referred to mediation before a registrar of the Court. The first mediation conference was held in late October 2012. At that point, Oil Basins was not involved in the mediation as it was not yet a respondent in the proceeding.

13    Soon afterwards, on 25 October 2012, Oil Basins applied to be joined as a respondent in the proceeding. As noted below, it was not until 15 February 2013 that the joinder application was determined.

14    In the meantime, in late November 2012, a second mediation conference was held before a registrar of the Court. Oil Basins was again not involved as it was still not a respondent.

15    In early December 2012, however, the claimants provided Oil Basins with a copy of Dr Palmer’s final report and an affidavit in connection with the future act proceeding in the NNTT. The final report was filed in the proceeding in this Court soon afterwards.

16    On 30 January 2013, the State notified all respondents, which included pastoral respondents, the Commonwealth, and Telstra Corporation Limited but not Oil Basins, as it was still not a respondent party to the proceeding, that it was prepared to move to a consent determination in the proceeding. By doing so, the State indicated to the respondents it was prepared to concede connection, leaving extinguishment issues to be resolved.

17    On 1 February 2013, in the future act proceeding, the NNTT determined that the permit could be granted, subject to conditions.

18    On 8 February 2013, a third mediation conference was held before a registrar of the Court. As Oil Basins was still not a party, it was not involved.

19    A week later, on 15 February 2013, over the objection of the claimants, this Court (by the primary judge) heard the joinder application of Oil Basins and ordered joinder. See Watson v State of Western Australia [2013] FCA 238.

20    At the hearing of the joinder application, counsel who then appeared for Oil Basins told the primary judge that, in her experience, parties such as Oil Basins “take very little part in the proceeding and that such part as they play, does not significantly add to the length or cost of a trial”.

21    On 18 February 2013, the State Solicitor’s Office (SSO) on behalf of the State, following the joinder of Oil Basins, provided Oil Basins with a copy of its email of 30 January 2013 to respondents advising that the State was prepared to move to a consent determination. That email included the following statement made on behalf of the State:

Whilst we do not agree with the conclusion in Dr Palmer’s report that there was one Nyikina Mangala society at the time of sovereignty, given the dearth of early ethnography for either group the State will consider, as a matter of pragmatism, a consent determination in favour of the Nyikina Mangala people, with no reference to one society at sovereignty and no demarcation of Nyikina or Mangala areas.

(Emphasis added.)

22    On 28 February 2013, the solicitors then acting for Oil Basins, Hunt & Humphry, wrote to Ms Sheila Begg, Senior Assistant State Solicitor at the SSO in the following terms:

Could you fully brief us please in respect of the proposal for a consent determination in favour of the Nyikina and Mangala and as to any mediation outcome from 8 February 2013.

23    The letter then conveyed a number of comments by reference to the decision of the High Court of Australia in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 and in particular the question of whether the Nyikina and Mangala people constituted a “single society”. The letter remarked:

As is apparent from Dr Palmer’s report, the question of whether the Nyikina and Mangala constituted a single society since before sovereignty is controversial.

24    Hunt & Humphry in their letter noted that Dr Palmer had acknowledged that Dr Martin considered that at sovereignty the two groups formed different groups.

25    Hunt & Humphry added:

Moreover, it appears from your email that the State does not consider that they were a single society at sovereignty.

26    The solicitors further stated:

In this situation, we query the basis upon which the State proposes to consent to the determination.

27    In the penultimate paragraph of their letter Hunt & Humphry sought to remind the State that:

Generally, the State has an obligation to test the claimants’ case and if it considers that the claim cannot be made out it should defend the claim.

28    On 1 March 2013, Mr Chris Humphry, from Hunt & Humphry, met with Ms Begg. The two of them canvassed the issues raised in the Hunt & Humphry letter.

29    By email of 1 March 2013, Mr Humphry informed Mr Kim Warren McGrath, Executive Chairman of Oil Basins (and a qualified lawyer), of what had been discussed at the meeting with Ms Begg and set out the State’s bases for not contesting the claimants’ connection case. The following points were made by Mr Humphry, obviously repeating what Ms Begg had conveyed to him:

    The issues of defining Aboriginal language group membership and boundaries and the rules of land ownership have been controversial since anthropologists first studied Aboriginal culture.

    The Nyikina are traditionally located around the Fitzroy Valley, whereas the Mangala are more desert orientated to the south although they moved north into the Fitzroy particularly in harsh times. Apparently, there is evidence of numerous Mangala sites in the Fitzroy which predate sovereignty. It seems there has been long standing interaction between the two groups who have largely merged since sovereignty.

    Most importantly to the State, the Nyikina and Mangala today regard themselves as one “mob” although they recognise that different people have traditional associations with different parts of the country.

    Initially the State was concerned that Dr Palmer’s report did not adequately address the “society” question and it had its own advice from Dr Martin questioning this aspect of the report. Apparently Dr Martin was not available more recently and the State consulted another anthropologist who advised that Dr Palmer’s thesis is sustainable, albeit somewhat shallow. Apparently a significant difficulty faced by the anthropologists is the apparent lack of early anthropological research in the area. The Kimberley Land Council (KLC) is not aware that the State has obtained further anthropological advice.

    Ms Begg advised that the State is conscious that in other cases concerning claims by “mixed groups”, the Federal Court has taken a generalist or high level approach to the requirement that a single land owning society has continued since sovereignty. Provided the members of the claim group are traditionally associated with parts of the claim area, the group is united in the claim to the land and they follow similar beliefs, the Federal Court has been prepared to make a determination.

    In these circumstances and on the evidence available, the State on advice considers that if the claim went to a contested hearing it would succeed. Accordingly, the State is considering negotiating a consent determination on a without prejudice basis.

    Ms Begg acknowledged that her email of 30 January 2013 was not well worded. The reference to a “pragmatic approach” is meant to convey (as Mr Humphry understood her) that despite any reservations the State may have about the “society” issue, it recognises that the claim is likely to succeed.

    At the last mediation meeting on 8 February 2013, the State tabled a preliminary outline of a consent determination. This has not yet been circulated to other parties and the KLC has not responded.

30    Soon after those communications, on 5 March 2013, a fourth mediation conference was held before a registrar of the Court, which was attended by Oil Basins for the first time.

31    Two days later on 7 March 2013, a fifth mediation was conducted, although Oil Basins was not involved in that mediation.

32    On 7 March 2013, the State advised Oil Basins and other respondents that it had obtained advice from senior counsel (who, as it transpires, was the Solicitor-General of the State, Mr Grant Donaldson SC) that the claim would succeed at a contested hearing.

33    On 7 March 2013, Hunt & Humphry emailed Oil Basins. The email summarised a further briefing session held by the SSO with representatives of the pastoralist respondents and counsel for Oil Basins. It went into some detail as to the steps taken by the State to confirm the claim boundaries, including that “[b]ased on advice, while the State considers that some aspects of Dr Palmer’s report are not convincing … the State considers that there is a reasonable basis for the claim boundaries and for a single determination notwithstanding historical and traditional differences between Nyikina, Mangala and Warrwa”. The email went on to state:

Moreover, there is no evidence available to the State that could be presented in opposition to the claim. Although there is some early linguistic data concerning the Nyikina, Mangala and Warrwa there is no early anthropological material. Accordingly, the State considers (on senior counsel’s advice) that, in spite of any misgivings it may have had concerning Dr Palmer’s report, the claim would succeed in a contested hearing. The State also considers that the evidence contained in Dr Palmer’s report is sufficient to justify the court making a determination under s 87 of the Native Title Act. In the circumstances it has taken the decision to consent to a determination of native title.

The State actively contested early native title claims. However, the general policy now is to agree to consent determinations if the State considers on advice that the claim will succeed rather than put the claims to proof.

34    On 12 March 2013, a sixth mediation conference was held before a registrar of the Court, Oil Basins not being involved in that mediation. A further, seventh mediation, however, was held later that day which was attended by Oil Basins.

35    On 15 March 2013, the claimants’ claimant application was amended, including by an amendment made in light of further investigations conducted by Dr Palmer.

36    On 15 March 2013, programming orders were also made by the primary judge including to the following effect:

    Respondents (other than the State) to notify of their intention to participate in the proceeding by 20 March 2013.

    The claimants to file a statement of issues, facts and contentions by 20 March 2013.

    The State to file a response to the claimants’ statement of issues, facts and contentions by 22 April 2013.

    Other respondents to file a response to the claimants’ statement of issues, facts and contentions by 30 April 2013.

37    By letter of 15 March 2013, Ms Begg for the SSO advised Hunt & Humphry:

(1)    That the State had not filed and did not intend to file Dr Martin’s report, which it said was obtained on a confidential basis to assist the State’s consideration of the connection issues and there was no intention to provide it to any respondent party as it was not relied upon by the State in the proceeding. Ms Begg further advised that the KLC was the appropriate source of any further information on connection issues.

(2)    That the State had negotiated with the claimants and other parties as it was required to do under the NTA, noting that the Warrwa people are not parties to the proceedings and they did not have an overlapping claim and it would be improper for the State to discuss matters arising in a without prejudice, confidential mediation with third parties. She added that in any event as discussed during the mediation meeting, consideration had been given to issues raised in Dr Palmer’s report with respect to boundaries, and the offer to settle the proceedings had been made taking into account issues raised, and relevant jurisprudence.

38    In those circumstances, having earlier been told to direct any relevant connection inquiries to the KLC, on 18 March 2013, Hunt & Humphry wrote to Ms Jacki Cole, Principal Legal Officer of the KLC, touching on a number of matters, including the Warrwa people, the overlap area on the northern part of the claim area with part of the area of the permit, the claim boundaries, and the claimants as a “society”.

39    In their letter, Hunt & Humphry stated, as they had in their earlier correspondence to the State:

It is also apparent from Dr Palmer’s report that the question of whether the Nyikina and Mangala constituted a single society (as described in Yorta Yorta …) since sovereignty is controversial. He acknowledges that Dr David Martin, who was engaged by the State to review the original draft of Dr Palmer’s report, considers that at sovereignty they formed different groups.

40    Hunt & Humphry then requested information about the claim boundary, particularly in the north where the permit applied, and the basis upon which it was to be determined, and also about the society issue.

41    Hunt & Humphry advised the KLC that Oil Basins was not prepared to consent to a determination “unless there is an informed basis for it to do so”, thus the need to be provided with the relevant materials. The information requested was:

(1)    The material relied upon by the claimants and the KLC to determine the northern claim boundary.

(2)    Whether the KLC, as the representative body for the area, consulted with parties other than the Nyikina Mangala claim group, in particular the Warrwa people.

(3)    The material relied upon to show that traditionally the claimants were a single society.

(4)    Whether Oil Basins can be given access to the Dr Palmer material of 2009, Dr Martin’s comments or report, and the Noonkanbah report.

42    As noted above, a number of these requests, if not all, were made because the State was not prepared to provide its privileged connection materials to Oil Basins.

43    On 19 March 2013, Oil Basins, by its solicitors, filed its notice of intention to participate in accordance with the programming orders of 15 March 2013, putting connection in issue. The notice stated that Oil Basins:

intends to participate in all of the hearing, of these proceedings and wishes to receive all documents regarding the hearing.

44    The next day, 20 March 2013, Hunt & Humphry wrote to the SSO seeking Dr Martin’s report and raising some connection issues.

45    Also on 20 March 2013, the Commonwealth as well as the pastoral respondents, filed notices of their intention to participate in all parts of the hearing and their desire to receive documents regarding all parts of the hearing.

46    On 21 March 2013, the claimants, by the KLC, responded to the Hunt & Humphry letter of 18 March 2013 in detail, including by providing a substantive treatment of the concerns over the “single society” issue with reference to both case law and to paragraphs [148]-[172] of Dr Palmer’s final report where he addressed the issue by having regard to the test laid down in Yorta Yorta. The KLC letter pointed out that the issue had been discussed at length with the SSO and had been discussed by Dr Palmer and Dr Martin, who had met informally, and that as a result the State had been satisfied that connection was capable of being established on the available evidence.

47    The KLC letter concluded by stating that insofar as Oil Basins may have any concerns about the single society issue or indeed about any issue relating to the connection evidence, it should “take this up with the State Solicitor’s Office”.

48    The KLC further observed in its letter:

I am sure that you are aware that the usual practice in Western Australia and elsewhere is for the State, once it has satisfied itself as to the cogency and credibility of the Applicant’s connection evidence, to then approach the other Respondent parties to seek their support for a consent determination.

49    The KLC otherwise declined to provide the information earlier requested by Hunt & Humphry. A copy of the KLC letter was sent by email to the SSO.

50    It might be noted in passing at this point that Oil Basins had in fact earlier received a copy of Dr Martin’s report from the State for the limited purpose of mediation in the proceeding. It appears the report was held by Oil Basins at material times and not, despite some suggestions to the contrary, returned to the State or the SSO. The State, as noted, refused however to waive its privilege in the report.

51    On 21 March 2013, Telstra also filed a notice of intention to participate in the proceeding and requested documents, but limited to extinguishment issues only.

52    On 21 March 2013, an eighth mediation conference was held before the registrar, which was attended by Oil Basins. The next day on 22 March 2013, a ninth mediation conference was held, Oil Basins not being involved.

53    On 28 March 2013, a tenth mediation conference was held before the registrar, Oil Basins not being involved.

54    On 2 April 2013, the claimants provided Hunt & Humphry, at their request, with copies of three documents authored by Dr Palmer and Dr Martin. The same day the State provided all parties with land tenure information.

55    The next day, 3 April 2013, the claimants filed their statement of issues, facts and contentions in the proceeding in accordance with the orders made 15 March 2013.

56    On 5 April 2013, an eleventh mediation conference took place before the registrar, which was attended by Oil Basins – the fourth mediation conference attended by it.

57    Nearly two weeks later, on 17 April 2013, a twelfth mediation conference was held before the registrar, although Oil Basins was not involved. The next day, 18 April 2013, a thirteenth mediation conference was held before the registrar, which was attended by Oil Basins.

58    On 19 April 2013, an open mediation report was provided to the primary judge by the registrar. In it, the registrar noted that, if all other parties agreed, the State was prepared to resolve the matter by way of consent determination. It was noted that the Commonwealth and Telstra were willing to be guided by the State in relation to matters concerning connection and were willing to agree that the proceeding be resolved by way of consent determination. The pastoral respondents were also willing to be guided by the State in the matters concerning connection and were willing to agree the proceeding be resolved by way of consent determination as proposed by the State. It was also later confirmed by the solicitors for the pastoral respondents that they would not be participating in a connection hearing.

59    On 19 April 2013, the Commonwealth filed an amended notice limiting its involvement to hearings on extinguishment issues only.

60    On 22 April 2013, orders were made by the primary judge excusing the State from filing a response to the claimants’ statement of issues, facts and contentions that it had earlier been required to file, and from participating in the hearing of connection evidence due to commence on 2 July 2013.

61    On 29 April 2013, the Commonwealth filed a response to the claimants’ statement of issues, facts and contentions, but concerning extinguishment issues only.

62    On 30 April 2013, Oil Basins filed its response to the claimants’ statement of issues, facts and contentions concerning connection. In doing so, it was the only respondent to put the claimant to proof on all connection elements necessary to establish native title.

63    On the same day, the claimants filed their witness list, schedule and protocols for the on country hearing due to commence on 2 July 2013.

64    The claimants then moved, by interlocutory application filed 6 May 2013, for orders removing Oil Basins as a party to the proceeding.

65    On 8 May 2013, the pastoral respondents amended their notice of intention to participate, limiting their involvement to extinguishment issues only.

66    On 8 May 2013, the claimants proposed to Oil Basins, as an alternative to its removal as a party, that its participation in the proceeding be limited to leading evidence and making submissions in respect of the matters listed in s 225(c) and (d) NTA – effectively extinguishment and determination issues concerning the permit.

67    On 10 May 2013, Hunt & Humphry wrote to the KLC regarding the substantive hearing, stating that the parties should confer as soon as possible and that:

We are unable to suggest how the currently proposed hearing of connection evidence may be reduced since we have only the suggested timetable filed 30 April 2013. We can indicate generally however that our client’s position is that only those matters identified in [Oil Basins’] Statement of Issues, Facts and Contentions filed 30 April 2013 … are in issue.

68    On 13 May 2013, a fourteenth mediation conference was held before the registrar, in which Oil Basins was not involved.

69    On 15 May 2013, the claimants’ removal application came on for hearing for the first time before the primary judge. At that point, connection remained in issue, based upon Oil Basins’ assessment of Dr Palmer’s connection report. However, Oil Basins then undertook to amend its response to make clear its intention that its case was limited to the area affected by its permit and to obtain instructions on the scope of any position to be advanced as to whether there was one or more societies of persons who held native title rights and interests in the claim area at sovereignty.

70    On 16 May 2013, Oil Basins notified the Court and the parties to the removal application that it intended to amend its notice of intention to participate and to file an amended response, which it did on 20 May 2013. The amended notice of intention to participate was in line with the amendments made by the Commonwealth filed 19 April 2013 and limited its participation to extinguishment issues only. The substituted response was in line with that amended notice and concerned extinguishment issues only in the area of overlap with the permit.

71    On 22 May 2013, the removal application came before the primary judge for the second time. The claimants submitted that despite filing the substituted response, Oil Basins had not narrowed its response to issues of extinguishment as per s 225(c) and (d) NTA. Oil Basins as a result was given leave to file and serve a further notice of intention to participate and further amended response to clarify its position, which involved not contesting connection.

72    In those circumstances, on 22 May 2013, the primary judge made orders:

    Vacating the on country hearing scheduled for 2 July 2013 and all the programming orders made 15 March 2013; and

    Providing that the removal application be listed for a further hearing in relation to the issues of costs and limitation of Oil Basins’ participation in the proceedings.

73    Under s 85A(1) NTA, unless the Court orders otherwise, each party to a proceeding must bear his or her own costs. Section 85A(2), however, provides that, without limiting the Court’s power to make orders under subs (1), if the Court is satisfied that a party to a proceeding has “by any unreasonable act or omission” caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

74    Before the primary judge, the claimants put it squarely in issue that Oil Basins by its conduct in putting connection in issue had acted unreasonably and caused the claimants to incur costs in the conduct of the proceeding, that is to say, in the course of preparing for the on country hearing that was to commence on 2 July 2013, when all other respondent parties had, at material times, accepted connection and obviated the need for a hearing and the considerable expense associated with it.

75    On 29 May 2013, Oil Basins filed a foreshadowed amended notice of intention to participate and an amended response, confirming that only extinguishment issues remained between the parties.

76    On 18 July 2013, at a third hearing of the removal application, orders were made providing Oil Basins and the State with an opportunity to file further affidavit material.

77    On 13 August 2013, the removal application was heard and the primary judge reserved judgment.

78    On 24 February 2014, the primary judge delivered judgment, finding that Oil Basins had acted unreasonably for the purposes of s 85A(2) NTA and made orders limiting the participation of Oil Basins to leading evidence and making submissions in respect of the matters listed in s 225(c) and (d) NTA, as well as ordering Oil Basins to pay costs forthwith, on an indemnity basis, from 19 March 2013, being the date when Oil Basins filed its notice of intention to participate in the proceeding and put all issues, including as to connection, in issue. See Watson v State of Western Australia (No 3) [2014] FCA 127.

79    The costs orders made by the primary judge on 24 February 2014 were as follows:

3.    [Oil Basins] pay the applicant’s costs of the interlocutory application dated 6 May 2013 including, for the period since 19 March 2013, any costs thrown away by reason of [Oil Basins] changing its position on the issue of connection.

4.    The costs, the subject of Order 2, be paid on an indemnity basis forthwith.

80    Oil Basins now appeals against those costs orders, pursuant to leave, on seven substantive, though closely inter-related, grounds, namely that:

(1)    The primary judge erred in holding in effect that Oil Basins was obliged to adopt the decision of the State to concede the claimants’ case on connection, despite its beliefs about the existence of deficiencies in the claimants’ case and despite the State refusing to give it access to the anthropological evidence and legal advice of the State which informed the State’s decision. (Ground 2)

(2)    The primary judge erred in holding at [59] and [82] that in all the circumstances it was unreasonable for the appellant to put connection in issue, the material circumstances being:

(a)    The beliefs of Oil Basins about the existence of deficiencies in the claimants’ case.

(b)    The evidentiary material available to Oil Basins.

(c)    The particular impact of a determination of native title on it.

(d)    The State refusing to give it access to all relevant anthropological evidence and legal advice. (Ground 3)

(3)    The primary judge erred in holding at [59] and [82] that in all the circumstances it was unreasonable for Oil Basins subsequently to concede the claimants’ case on connection. (Ground 4)

(4)    The primary judge erred in holding at [57] that it would not be appropriate for it to contest the claimants’ case on connection simply by testing the claimants’ expert evidence in cross-examination and making submissions on the evidence. (Ground 5)

(5)    The primary judge erred in holding at [94] that none of the matters relied upon by Oil Basins as reasonable grounds for contesting the claimants’ case on connection amounted to a significant deficiency in the case on connection. (Ground 6)

(6)    The primary judge erred in finding at [30] that Oil Basins had been informed that the State had been advised that the claimants’ claim was very likely to succeed, when Oil Basins had simply been informed that the State had been advised that the claim was likely to succeed. (Ground 7)

(7)    The primary judge erred in finding at [95] that Oil Basins no longer believed it had reasonable grounds for contesting the case on connection. (Ground 8)

81    The question on this appeal (identified by ground 1 of the notice of appeal) is whether the primary judge made any error of fact or law on any of those grounds that caused the exercise of his discretion to award costs on the terms that he did, to miscarry.

primary judge’s reasoning

82    The primary judge in his reasons for making the costs orders explained the background to the joinder of Oil Basins.

83    His Honour noted, at [17], that counsel who appeared for Oil Basins on the joinder application had submitted that, in her experience, which was not inconsiderable, parties such as Oil Basins “take very little part in the proceeding and that such part as they play, does not significantly add to the length or cost of a trial”.

84    His Honour then set out details concerning the exchange of correspondence between the SSO for the State, and Hunt & Humphry, solicitors for Oil Basins at material times (both early on and at the time of this appeal, another firm, Bennett + Co, having been on the record in between those times and at the time the challenged costs orders were made by his Honour), concerning anthropological evidence that might be called at trial bearing on the connection issue.

85    His Honour noted, for example, that in March 2013, the SSO wrote to Hunt & Humphry advising them that the State relied on the anthropological report of Dr Martin that had been prepared for the State for the purposes of mediation only and in respect of which privilege was claimed, and did not intend to provide it to any respondent party, and that Hunt & Humphry then wrote to the KLC in March 2013, referring to a recent mediation and raising a number of issues, including the issue of whether the claimants were a “single society” at sovereignty.

86    His Honour noted that the KLC had responded to that letter later in March 2013 and provided a substantive treatment of the expressed concerns about the single society issue. In the letter the KLC stated that Dr Palmer had addressed the issue by reference to the decision of the High Court in Yorta Yorta; and that the issue had been discussed at length with the SSO, and by Dr Palmer and Dr Martin, with the result that the State had been satisfied that connection was capable of being established on the available evidence.

87    His Honour then explained how, at mediation in early April 2013, a “non-unanimous” request was made for a mediation report to be submitted by the mediator/registrar to the Court, which was done. That report was provided on 19 April 2013 and stated that the State was prepared to resolve the matter by way of consent determination of native title and that the Commonwealth and Telstra were willing to be guided by the State in relation to matters of connection and were willing to agree that the proceeding be resolved by way of consent determination. Similar indications were made by pastoral company respondents.

88    As a result, his Honour explained, Oil Basins remained the only respondent not adopting the State’s position, and, at that point, Oil Basins proceeded to file a response in the proceeding. That response put the claimants to proof on all of the elements necessary to establish native title, including that the claimants were one society for the purposes of a determination of native title. Issues to do with the extent of the northern boundary of the claim area and the identity of members of the claim group who exercise native title rights and interests within an area of overlap with the permit were also identified. His Honour noted that the few admissions which Oil Basins made were of little if any consequence.

89    His Honour noted that at the end of April 2013, the claimants, in accordance with the programming orders for the proposed hearing on their traditional country, filed their witness proposal. Then on 6 May 2013, the claimants filed the application to remove Oil Basins as a respondent. Soon after that, the KLC indicated to Hunt & Humphry that, as an alternative, the application would not be pressed if Oil Basins agreed to an order that its participation in the proceeding be limited to the matters listed in s 225(c) and (d) of the NTA; that is to say, to protecting its interest in the permit.

90    On 15 May 2013, his Honour noted, when the KLC’s removal application came on for hearing, the State again confirmed it did not challenge the connection material, accepted that there was connection and that the decision had been made on the merits of the evidence and not for any other purpose.

91    His Honour noted that, at this point, Mr Bruce (of Bennett + Co), counsel for Oil Basins, said that that statement was something which Oil Basins had not previously known and he indicated that, as counsel, he was put in a difficult position, “because of other information that I’m not at liberty to disclose to the Court”.

92    His Honour observed of this statement by Mr Bruce, at [30] of his reasons, however, that at that point Oil Basins well knew the State was not putting connection in issue and knew that, as at 18 February 2013, from the SSO email of 30 January 2013, the State was considering entering into a consent determination. His Honour said Oil Basins’ then solicitors in early March 2013 (Hunt & Humphry) had also been advised that the claim would very likely succeed if it were to go to trial and that the State had decided to consent to a determination of native title. His Honour concluded, at [30]:

Accordingly, [Oil Basins] had known the State’s position incrementally since 18 February 2013 and, as a fact, by no later than 7 March 2013 and probably earlier.

93    His Honour recorded at [32] the formal exchange that took place between the Court and Mr Bruce as to the basis upon which connection was being put in issue, as follows:

HIS HONOUR: … Now, if you don’t want to put information before the court for whatever reason, that’s a matter for you, but I should say without foreshadowing or pre-empting my final decision, on its face, I must tell you that I find it difficult to see what else your client needs given the content of the draft consent determination. Your client’s interest in the permit, if it gets the permit, is entirely protected. What more does your client want?

MR BRUCE: Our client wishes to engage fully, your Honour, in both mediation and to the extent that - - -

HIS HONOUR: That’s not an answer to my question, Mr Bruce.

MR BRUCE: Your Honour, it is that we have – we wish to access the evidence that is presented, and we have been assessing the evidence, and we - - -

…

HIS HONOUR: - - - what is it that your client is seeking to achieve beyond what, on its face, would be first prize for someone in your client’s position, namely, that its interests under the permit, to the extent that they conflict with interests and native title interests, your clients rights will predominate. Your client is fully protected. So I’m prepared to accept that there might be something that I don’t know, and that I can’t foreshadow that your client has an interest beyond that. But I must tell you again, for the moment, it escapes me.

MR BRUCE: It is, your Honour, that on the material that we have seen, that we are not satisfied at the moment that connection can be made out in respect of the northern part of the claim area. That is 13 per cent of the total claim area, and we wish to, firstly - - -

HIS HONOUR: Now, what’s your basis for that?

MR BRUCE: That principally on the material, on the anthropological report that has been filed, 7 December last year, that there is - - -

HIS HONOUR: Dr Martin?

MR BRUCE: No, it’s Dr Palmer’s report. Dr Martin – Dr Palmer refers to Dr Martin, but Dr Martin’s materials are not before the court.

HIS HONOUR: But that’s the material that the State has had before it, and has fully considered. That’s why I asked Ms Begg the question that I did.

MR BRUCE: Yes. Well, we haven’t been able to, your Honour, in an open forum, refer to that documentation.

HIS HONOUR: So does your client have its own anthropologist?

MR BRUCE: No, your Honour.

HIS HONOUR: So on what basis are you standing alone against everyone else in this claim to suggest that there is no connection

MR BRUCE: We wouldn’t necessarily like to be, your Honour. We are as – we are the only party who filed a statement of facts and contentions on 30 April, and as at that date, we were engaging in mediation, and so - - -

HIS HONOUR: But do you have a basis to contest connection, Mr Bruce.

MR BRUCE: Yes, your Honour. Well, we believe on the material that we’ve seen to date that there is a query and potentially a substantial query that we would like to explore in order to satisfy ourselves, first in relation to mediation, and obviously if the matter cannot be resolved through mediation, we are then before the court - - -

…

HIS HONOUR: And you must forgive me if I ask you the same question for a third time, but given the protection that your client so clearly is going to be afforded in relation to its permit, and as I understood your clients’ interest when the matter first came on, on the joinder application, was its interest in the permit; its rights under the respective permit being protected that was shaping your client’s involvement. Given that it would seem an iron-clad protection of your client’s ....., why is your client not satisfied with that?

MR BRUCE: Our client wishes to ensure, your Honour, in part, that it is able to negotiate in the future, not just in relation to native title matters, but Aboriginal protection matters, with the people - - -

HIS HONOUR: But you have that right to negotiate in relation to that. You can’t make demands of applicants to those sorts of matters, which would be the subject of negotiation as a right in due course, as the cost of you not putting in issue connection.

94    His Honour said, at [33], that from this exchange, it could be seen that, when asked whether Oil Basins was in possession of any material which supported or gave rise to its concern, it was submitted that it was principally derived from its consideration of the final report, and that it did not have its own expert. His Honour said of this exchange (at [33]):

It may be seen then, that, when asked whether [Oil Basins] was in possession of any material which supported or gave rise to its concern, it was submitted that it was principally derived from its consideration of the Final Report, and that it did not have its own expert. Counsel for [Oil Basins] submitted that in assessing the Final Report, they were exploring it in the context of ‘other documents’. It was later revealed that the ‘other documents’ referred to by counsel were the Martin Report and an earlier report that Dr Palmer had co-written with another anthropologist in relation to the Noonkanbah area (the Noonkanbah Report). Both documents were referred to in the Final Report which [Oil Basins] had had in its possession since December 2012. In the Final Report Dr Palmer concluded that the evidence supported connection with the Nyikina and Mangala constituting one society (connection). The Martin Report had been prepared for the purposes of mediation and was subject to privilege, and the Noonkanbah Report was produced for mediation purposes and was subject to confidentiality restrictions. However, those two reports, it seems, were inadvertently provided to [Oil Basins] by the KLC under cover letter of 27 March 2013.

95    His Honour then said, at [34], that counsel for Oil Basins conceded that its response over-reached (that is to say, went beyond) the permit area and informed the Court that it wished to amend its response. The Court adjourned the hearing of the KLC’s removal application to 22 May 2013 to enable this to occur. On the adjourned date, Oil Basins filed an amended notice of intention to participate and a substituted response which indicated, amongst other things, that it did not intend to participate in any part of the proceeding referred in the programming orders made 15 March 2013 in para 1(a), (b) and (c) – that is to say the on country hearing. His Honour noted that this, properly understood, was a concession by Oil Basins that connection would no longer be an issue and that it indicated it wished to participate in that part of the proceeding referred to in para 1(d) of the programming orders to the extent that extinguishment issues were raised. The KLC’s removal application was then further adjourned to 22 May 2013, when the claimants advised the Court that they were pressing for an alternative order restricting the participation of Oil Basins to the matters listed in s 225(c) and (d) of the NTA.

96    Subsequently, his Honour noted, on 29 May 2013, Oil Basins filed a further amended notice of intention to participate and response which made it clear that it was only concerned with extinguishment issues within the area of overlap between the prospective permit area and the Nyikina Mangala claim area.

97    His Honour noted that the removal application came back before the primary judge on 18 July 2013, at which time Oil Basins indicated it had opposed entering into a consent determination previously because, during the time in which it had been a party, it had become aware of information from which it formed the view that the claimants’ case had serious deficiencies. It said that it had requested information from the claimants and the State in relation to its concerns but had not been persuaded by their responses. The requests included one made to the claimants in the middle of March 2013 for a copy of the draft report, the Martin Report and the Noonkanbah Report, and one to the State for a copy of the Martin Report. His Honour recorded, at [38], that it was submitted by Oil Basins with reference to the correspondence, as well as correspondence from the State to Hunt & Humphry dated 15 March 2013, and the claimants’ response dated 21 March 2013, that it had been actively attempting to obtain the necessary information that might satisfy it that connection need not be in issue.

98    His Honour also noted that Oil Basins referred to various materials annexed to the affidavit of Ms Cole made 31 January 2012 that it said informed its view and understanding concerning the single society issue.

99    Oil Basins also referred to the “future act” decision which had been delivered by the NNTT on 1 February 2013 which, it submitted, made relevant comments concerning the rights to possess, occupy and enjoy the area and to access the area. It suggested that this did not show a strong native title claim or even a basis, on the balance of probabilities, for establishing native title in the overlap area.

100    His Honour noted, at [42], that Oil Basins placed considerable reliance upon the email dated 30 January 2013 from the SSO to all respondent parties and re-sent to Oil Basins around 18 February 2013, after it had been joined as a respondent party, which had stated “as a matter of pragmatism” the State would consider a consent determination in favour of the Nyikina Mangala People even though it did “not agree with the conclusion in Dr Palmer’s report that there was one Nyikina Mangala society at the time of sovereignty”.

101    At [43], his Honour said that the use of the phrase “as a matter of pragmatism” was capable of subverting what counsel for the State had informed the Court on 15 May 2013: that the State’s decision to no longer put connection in issue was the product of its consideration of all the relevant evidence and not for any other purpose. His Honour inferred that the content of this redacted paragraph of the 30 January 2013 email (which he set out in detail at [42]), at least, fell within the “other information” referred to by Mr Bruce, as counsel for Oil Basins, when he informed the Court on 15 May 2013 that what the State had said formed the basis of its decision to accept connection had put him in a “difficult position”. In other words, his Honour inferred, had Mr Bruce been at liberty on that occasion to do so, he would have disputed what had been said on this question by the State and would have submitted that the decision by the State had been made for reasons of pragmatism and not based on the available evidence.

102    At [44], his Honour said that, consistently with what Mr Bruce must have understood was the position, it was submitted by senior counsel for Oil Basins that, but for the 30 January 2013 email, there would have been no reason for Oil Basins to believe that the State had not satisfied itself as to the cogency and sufficiency of the claimants’ connection evidence. It was further submitted that by 21 March 2013, whilst the State may have satisfied itself about this matter, Oil Basins had not been informed of this. His Honour italicised the latter proposition. His Honour then found that:

Again, whilst I accept that Mr Bruce and senior counsel did not appreciate it, as a matter of fact, [Oil Basins] was well aware of the State’s reasons for no longer putting connection in issue. It was then submitted by senior counsel for [Oil Basins] that ‘the last word from the State on this was that it was not satisfied about connection issues’ and that while the State had the Martin Report it was not allowing the other respondent parties to review it.

103    His Honour then said, at [45], that for reasons he would later explain, as at 1 March 2013, Oil Basins knew, contrary to that submission, that the 30 January 2013 email was not the State’s “last word” on the issue of connection.

104    His Honour explained, at [46], that the State resisted the tender of various documents, including the 30 January 2013 email. It submitted that the email did not present a complete explanation of the State’s position and that absent further context, its content was likely to be misunderstood concerning the State’s position as to the connection issue. It also submitted that additional material would throw light on just what information the State had provided to Oil Basins on the connection issue. It was also submitted that the material provided did not set out the substance of discussions which had occurred between the State and Oil Basins. His Honour, at [46], then set out the exchanges that occurred involving senior counsel for Oil Basins, the Court, senior counsel for the claimants and counsel for the State. As a result of that exchange, the hearing was adjourned to allow Oil Basins to put on further affidavit evidence deposing to the substance of conversations which had occurred and the State was given leave to put on a responsive affidavit.

105    His Honour then noted that on 13 August 2013 the matter came on again for hearing. The State then sought to rely on the affidavit of Mr McGrath made 29 July 2013. Over the objection of Oil Basins that material in it was not relevant, his Honour, at [48], said the additional material “was centrally relevant”.

106    His Honour noted, at [49], that the State referred to an email dated 1 March 2013 from Hunt & Humphrey for Oil Basins, to Mr McGrath. It detailed a confidential and without prejudice conversation that Mr Humphrey had with Ms Begg. It set out in detail why the State, on the evidence available to it, and having received advice, had considered that if the claimant’s claim went to a contested hearing, it would succeed. His Honour said that, significantly, the email noted that Ms Begg had acknowledged that the 30 January email had not been well worded, and that the reference to a “pragmatic approach” was meant to convey that despite any reservations the State may have had about the “society” issue, it recognised that the claim was likely to succeed. The “advice” referred to was that of another anthropologist.

107    His Honour noted, at [50], that the email from Hunt & Humphrey also set out the reasons why the State no longer was concerned about the evidence going to connection. The first was evidentiary. The second concerned the approach the Federal Court would take in such cases. It culminated in noting that the Federal Court has taken a “generalist or high level approach” to the requirement that a single land owning society has continued since sovereignty.

108    The State referred to another email from Mr Humphrey to Mr McGrath, dated 7 March 2013 which summarised a further briefing session held by the SSO with the representatives of the pastoralists and counsel for Oil Basins. It included reference to the fact that the State considered there was a reasonable basis for the claim boundaries and for a single determination notwithstanding historical and traditional differences between the Nyikina, Mangala and Warrwa peoples. The email also made reference to the State considering its position “on senior counsel’s advice” – which was advice given by the Solicitor-General for Western Australia.

109    By reference to these exchanges, his Honour noted, at [54], Oil Basins submitted that the State had obtained a further anthropologist’s report which had not been disclosed to it, that the State had obtained the advice of senior counsel which had not been disclosed to it and that the instructions upon which the advice was based had not been disclosed. His Honour said, however, that these submissions disclosed a fundamental misconception as to the role and obligations of the State in such matters and that it acted in the capacity of parens patriae to look after the interests of the community generally. His Honour said the State, as it should have, took a real interest in the proceeding in that capacity. It was involved in negotiations and mediation meetings with the claimants over many years. It had carefully analysed and assessed the claimants’ connection material.

110    At [56], his Honour noted the work done by Dr Palmer as anthropologist engaged by the KLC in 2011 and the extensive report produced. Of the report, his Honour said: “[i]t is an impressive report by a leading expert”. It also responded to issues raised by Dr Martin on the single society issue. His Honour stated:

It is little wonder that, in light of this, the State altered its position, on advice from the State Solicitor-General to concede that connection would likely be made out. Importantly, [Oil Basins] had had this report since December 2012. [Oil Basins] took no steps to obtain its own anthropological report, whether from Dr Martin or any other expert.

111    His Honour noted, at [57], that Oil Basins submitted it did not have to take any steps towards obtaining its own anthropological evidence as, had the matter gone to trial and Dr Palmer given evidence, it would have been able to cross-examine him and persuade the Court that the opinions expressed and the conclusions reached by him were not supported by evidence. Thus, Oil Basins submitted to his Honour that it had acted entirely appropriately in seeking to test the opinion of Dr Palmer.

112    His Honour rejected this submission, at [57], and said that he did not accept that Oil Basins had a real issue with the matter of connection.

113    At [58], his Honour made the point that Oil Basins had never raised any such concern with the Court at the time it applied to be joined. His Honour said that apart from Dr Martin’s notes from years earlier it had no contemporary or detailed anthropological evidence to counter Dr Palmer’s detailed report. It never sought to explain to the Court, despite invitation, what, specifically, it took issue with or why on the issue of connection.

114    His Honour concluded, at [59] and [60]:

(1)    There was no acceptable adequate reason for Oil Basins to have put the whole of the claimants’ connection case in issue in circumstances where all other parties were prepared to enter into a consent determination. His Honour emphasised the consideration of the State of the evidence and the communication of its view as of 1 March 2013 in that regard. His Honour considered that senior counsel had an incomplete brief in addressing the question by omitting the emails of 1 and 7 March 2013 from Mr Humphrey to Oil Basins.

(2)    The emails of 1 and 7 March 2013 made it clear that the State not only described the reason for its change of position but gave detailed reasons for the change, which included the advice of senior counsel and another anthropologist.

115    As to the power of the Court to award costs in a proceeding under the NTA, his Honour observed, at [71], that it is well established that where s 85A applies:

(1)    Section 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

(2)    The “unreasonable conduct” of the parties is not a jurisdictional fact which preconditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1).

(3)    Whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs.

(4)    It is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants, as observed in Reid v State of South Australia [2007] FCA 1479 at [54].

See Cheedy v State of Western Australia (No 2) [2011] FCAFC 163; (2011) 199 FCR 23; Ward v State of Western Australia (No 2) [1999] FCA 580; (1999) 93 FCR 305; De Rose v State of South Australia (No 3) [2005] FCAFC 137; McKenzie v State of South Australia [2006] FCA 891; and Reid v South Australia.

116    Thus, his Honour considered, at [72], that the discretion of the Court to make an order for costs must be exercised judicially after taking relevant considerations into account and that s 85A(2) focusses the inquiry on whether there has been an unreasonable act or omission, in this case, by Oil Basins, which has caused the applicant to incur costs.

117    As to whether or not indemnity costs might be awarded in any given case, his Honour observed, at [73], that the question must always be whether the particular facts and circumstances of the case warrant the making of an order for payment of costs other than on a party and party basis. See Colgate-Palmolive Company v Cussens Pty Ltd [1993] FCA 801; (1993) 46 FCR 225 at 233-234; and Hamod v State of New South Wales [2002] FCA 424; (2002) 188 ALR 659 at [20].

118    His Honour also noted, at [75], the three classes of cases in which a court might order costs to be payable forthwith.

119    After reference to such authority, his Honour found that Oil Basins’ conduct was unreasonable for the purposes of s 85(2) NTA, so as to warrant an order as to costs in the proceedings. He found, at [82], it was unreasonable in two ways:

(1)    filing a notice and response and thus becoming the only party to challenge the claimants’ case on connection in circumstances known to it where the State and other respondent parties had agreed in principle to a consent determination; and

(2)    after filing the response it substituted a further amended notice and amended substituted response without any or any proper explanation.

120    His Honour, at [83], accepted the submission of the claimants that it was unreasonable of Oil Basins to refuse to be a party to the proposed consent determination in circumstances where:

(1)    Oil Basins has stated that it is not opposed to a consent determination.

(2)    The existence and the effect of its permit is to be recognised in the proposed consent determination.

(3)    The State has assessed the claimants’ connection evidence and considers it sufficient.

(4)    Every party, other than Oil Basins, has accepted the State’s assessment on connection.

121    His Honour also considered, at [84], it was unreasonable for Oil Basins, acting on its own without the support of any other respondent, to press the claimants on to a hearing on connection without any or any reasonable basis in circumstances where:

(1)    the State acts in the capacity of parens patriae to look after the interests of the community generally and by taking the lead in assessing the cogency and credibility of the connection evidence of the claimants; and

(2)    then approaches the other respondent parties to indicate it is prepared to settle with a consent determination.

122    His Honour further considered, at [86], it was unreasonable for Oil Basins to file in the Court documents putting connection in issue and stating it would participate in the on country hearing without any “real basis” for challenging connection.

123    His Honour, at [89], found that the claimants, prior to Oil Basins filing its response, had addressed Oil Basins’ concerns raised both in mediation on 5 and 21 March 2013 and in letters from Hunt & Humphry, dated 18 and 20 March 2013, and that Oil Basins was sufficiently informed, in the same way as all the other parties were, to have been able to agree to a consent determination as, in the belated event, it did.

124    His Honour made express reference to what Mr McGrath said in his affidavit made 7 June 2013 to the effect that he formed the view that there was a real risk that Oil Basins was going to be removed as a party to the proceeding if it did not immediately abandon its concerns about the bases upon which the State had reached a decision to accept the claimants’ connection claims. He noted that Mr McGrath went on further to depose that “I believe that rather than being removed entirely as a party to the proceedings it was in [Oil Basins’] interest to remain a party and concede the connection issues”.

125    His Honour considered, at [91], there was considerable substance in the submission made by the claimants that the fact that Mr McGrath formed the view that there was a “real risk” that Oil Basins would be removed as a party if it did not abandon its concerns about connection, could only meant that he, presumably on advice, formed the view that it was likely the Court would conclude that it would be in the interests of justice to remove Oil Basins as a party.

126    At [92], his Honour noted the “significant deficiencies” that Oil Basins claimed it was entitled to proceed to trial on in the circumstances, which were:

(1)    the fact that the State’s position in late 2011 was that the claimants’ claim as then formulated was “fatally flawed”. His Honour noted that Oil Basins on 13 August 2013 conceded that the claim was considered to be “fundamentally flawed”, not “fatally flawed”;

(2)    the fact that the claimants’ position in late 2011 was that its claim required more evidence to address the State’s position;

(3)    the apparent disagreement amongst the anthropologists on the evidence in support of the claim;

(4)    uncertainty as to whether the claim boundary was correctly identified or agreed as between the claimants and the Warrwa No 2 claimants in WAD 258 of 2012;

(5)    the lack of evidence of the claimants’ connection in the overlap area in the material relied on by the claimant in the future act proceedings for the grant of the permit;

(6)    the fact that the above material was presented 13 years after the claim was lodged and two months after the orders were made listing the proceeding for trial commencing 2 July 2013, being a time when it was reasonable to expect the preparation of the claimants’ evidence would be well advanced; and

(7)    the fact that Oil Basins did not receive any evidence in relation to connection in the overlap area after the future act decision was made.

127    His Honour considered, at [94], that none of the deficiencies in the claimants’ claim alleged on behalf of Oil Basins amounted to a significant deficiency on connection on 15 February 2013 when Oil Basins was joined as a party, or on 19 March 2013 when it filed its notice, or on 30 April 2013 when it filed its response.

128    His Honour made the point, at [95], that Oil Basins never reassessed its position based on further evidence or legal analysis of existing evidence such that it no longer believed it had “reasonable grounds” for contesting the claimants’ case on connection.

129    In any event, his Honour said, at [96], none of the so-called deficiencies were significant enough to prevent Oil Basins’ about face and abandoning its opposition to the claimants’ case on connection on 29 May 2013.

130    His Honour considered that costs should be paid from 19 March 2013 when Oil Basins filed the notice. Because of its “thoroughly unreasonable conduct” his Honour considered, at [108], that the costs should be paid on an indemnity basis. He said it had no real prospect, properly advised, of succeeding in its opposition to the existence of connection and should not have put that matter in issue.

131    His Honour noted that Oil Basins accepted that the costs in time, money, resources and personal stress of hearings on country on connection evidence were considerable and said, at [99], that he was satisfied that Oil Basins’ conduct had occasioned the claimants significant harm in respect of costs. His Honour made the point, at [100], that as at 5 April 2013, there were only three months remaining until the on country hearing was due to commence and only 25 days to develop the witness proposal in accordance with the programming orders. His Honour further explained, at [101], that the claimants’ solicitor made the decision in early March 2013, based on the availability of resources and funding, to direct resources to the mediation process and away from preparing the lay evidence for hearing. But, when Oil Basins filed its notice on 19 March 2013, resources then had to be redirected into the preparation of the case for hearing.

132    His Honour found, at [105], that Oil Basins was sufficiently informed by 7 March 2013 at the latest that the State had, upon reasonable grounds, taken the decision to consent to a determination of native title and was sufficiently informed both in fact and law as to why it so decided.

133    In those circumstances, his Honour concluded, at [106], that, for the purposes of s 37M of the FCA Act, it was not the case that justice and fairness would be sacrificed at the altar of expediency if a costs order were made. He stated that in matters such as this, the requirements of s 37M are met by parties who are fully informed and guided according to native title applications and their likely outcome, if contested, by the decision of the State. His Honour noted that all other parties, other than Oil Basins, did just that.

134    It was in all of those circumstances that his Honour found, at [107], that Oil Basins’ about face on the issue of connection was far from convincing and that it had no real prospect, properly advised, of succeeding in its opposition to the existence of connection and should not have put that matter in issue.

Did the primary judge err in holding, in effect, that Oil Basins was obliged to adopt the decision of the State to concede the claimants’ case on connection?

135    Oil Basins, by ground 2, says the primary judge erred in holding in effect that it was obliged to adopt the decision of the State to concede the claimants’ case on connection, despite its beliefs about the existence of deficiencies in the claimants’ case and despite the State refusing to give it access to the anthropological evidence and legal advice of the State which informed the State’s decision.

136    Oil Basins first developed this issue in its written outline of submissions, where it noted that:

    s 87(1A) NTA provides that a court may make an order in the terms of a consent determination if satisfied that it is appropriate to do so;

    this requires that there be a credible basis for the determination application, and an agreement which was freely entered into on an informed basis. It says it is important that the process of reaching agreements is fair and the agreement reached between the parties is a genuine agreement. See, for example, Lovett on behalf of the Gunditjmara People v State of Victoria (No 5) [2011] FCA 932 at [26]; Barunga v State of Western Australia [2011] FCA 518 at [25]-[26]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [34]-[43];

    in assessing appropriateness the Court will consider whether the consenting State has properly taken a real interest in the proceedings in the interests of the community generally and, through competent legal representation, is properly satisfied as to the cogency of the evidence upon which the applicant relies. See Munn v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [28]-[30]. It says the State need only be satisfied of a “credible”, “arguable” or “proper” basis or that the determination is “justified in all of the circumstances”. Authorities such as Lovett v Victoria (No 5), Lovett on behalf of the Gunditjmara People v State of Victoria, Hunter v State of Western Australia [2012] FCA 690 at [28]; Simon v Northern Territory of Australia [2011] FCA 575 at [11(e)(vi)]; and Barunga v Western Australia are referred to;

    when assessing the claimants’ connection evidence in native title proceedings, a State party “appears in the capacity of parens patriae to look after the interests of the community generally”. See Munn v State of Queensland at [29];

    the State’s parens patriae obligations serve to assist a court to determine whether it is “appropriate” under s 87 to make orders in terms of a consent determination. It says these obligations may take on a particular importance if the other respondents do not have legal representation, as explained in Munn v State of Queensland at [29]. They do not, however, operate to compel other respondents to agree to a consent determination. Nor do they inform a court whether it is reasonable for a particular respondent to decline to join in the making of a consent determination.

137    Oil Basins submits that his Honour erred in placing emphasis on the State’s parens patriae obligations, as he did at [6], [54] and [84], and not differentiating between:

(1)    the ability of the Court to rely on the State properly discharging its parens patriae obligations when considering the appropriateness of a consent determination; and

(2)    the right of a respondent to take a different view and not agree to join in a consent determination.

138    Oil Basins further submits that in assessing the reasonableness of Oil Basins’ conduct, his Honour held, in effect, that it was unreasonable for Oil Basins not to follow the State’s decision to concede the case on connection (as it submits his Honour did at [59] and [82]-[86]), notwithstanding that:

(1)    Oil Basins believed, on reasonable grounds, there were deficiencies in the case on connection (which are referred to in ground 6); and

(2)    the State had refused to give Oil Basins access to all of the anthropological and legal advice which informed the State’s decision, (as to which see [54] of his Honour’s reasons and relevant evidentiary material).

139    As a result, Oil Basins submits:

    his Honour in effect held that when the State is prepared to agree to orders in terms of a consent determination, not only is the Court entitled to rely on the position taken by the State, but each other respondent is obliged to do so, and acts unreasonably if it does not;

    this is inconsistent with the principle that parties should not enter into a consent determination unless they do so freely and on an informed basis.

140    Oil Basins says that in March 2013 it knew or reasonably believed:

(1)    That the State considered aspects of the evidence relied on by the claimants (namely, Dr Palmer’s final report) not to be convincing.

(2)    That the State had received anthropological advice that the thesis of one society at sovereignty was “sustainable albeit somewhat shallow”.

(3)    That the State had taken legal advice from the Solicitor-General that evidence “was enough to make a credible case” and would succeed in a contested hearing.

(4)    That, notwithstanding the State’s misgivings with the final report, the State considered the evidence was sufficient to justify the Court making an order under s 87 and accordingly had decided to agree to a consent determination.

141    Oil Basins says that, despite its repeated requests, it was provided with no material to clarify whether, and on what basis, the State had independently satisfied itself of the location of the boundary between the Nyikina Mangala and the Warrwa claims.

142    It complains it was not permitted to see all of the anthropological and legal advice available to the State and the State provided no position paper to Oil Basins or the other respondents explaining its decision (referring to [31] of the reasons).

143    To the extent that the written submissions of Oil Basins claimed or implied that it had been wrongly denied access to documents by the State, senior counsel for Oil Basins in oral submissions at the hearing of the appeal clarified the position of his client. He emphasised that it was not contended that the State had acted improperly in the exercise of its parens patriae responsibilities or duties, or that it had failed in its obligations generally as a litigant or indeed as a model litigant. He confirmed that in light of the tests that are required for the purposes of a consent determination under s 87, and the Court deciding whether or not it is appropriate to make a consent determination, Oil Basins offered no criticism whatsoever as to what was done by the State and the position that the State reached.

144    Senior counsel submitted that the point was that the State had available to it material which was not available to Oil Basins. He said the critical and important point that Oil Basins wished to make was that it had certain knowledge and beliefs at the relevant time which provided a proper basis for a public company to proceed to protect or seek to protect its legitimate interests in the claim area.

145    We agree that it is not in issue in this proceeding whether the State acted improperly in the conduct of the proceeding that ultimately led to the proposal that there should be a consent determination in this proceeding (as indeed subsequently there was). There is no suggestion by any party to that effect, as senior counsel for Oil Basins emphasised in his submissions. Nor could there be on the evidence and sequence of events set out above. Indeed, the State acted entirely appropriately at all times, both as a model litigant and in furtherance of the expectation created by the NTA, in particular the terms of s 87 of the NTA, and the overarching principle governing civil litigation expounded by ss 37M and 37N of the FCA Act that encourages the just resolution of disputes according to law and as quickly and inexpensively as possible and imposes duties on parties and their lawyers in that regard.

146    Rather, the point should be made, as the State contended, that the sequence of requests and communications between the solicitors for Oil Basins and the solicitors for the State and between the solicitors for Oil Basins and the KLC discloses that from the moment it was joined as a party in this proceeding, Oil Basins was anxious to understand “the basis” of the State’s position in relation to the proposed consent determination. Much of the detail of those communications and requests for information has been set out above. There can be little doubt that Hunt & Humphry in its relevant requests of both the SSO and KLC was anxious to understand the basis of the connection assessment made by the State. As discussed below, Ms Begg provided that basis in her meeting with Mr Humphry on 1 March 2013. Mr Humphry conveyed to his client in some detail exactly what Ms Begg had told him.

147    So far as the Martin report was concerned, while it had been provided to Oil Basins’ solicitor for the limited purposes of mediation, the State made it clear that it did not intend to file the Martin report in the main proceeding and maintained its claim to legal professional privilege in it. Oil Basins was advised of that in no uncertain terms.

148    Indeed, the SSO told Hunt & Humphry that if Oil Basins required any such documents they should direct their request to the KLC. When that was done, the KLC rebuffed the request for particular documents and suggested that any such request should be directed to the State.

149    In none of these dealings should any criticism attach to the conduct of either the State or the KLC. One can understand the basis on which anthropological materials, in particular, are obtained and used for particular purposes in native title proceedings. Parties are entitled to claim privilege for particular documents or use them for limited purposes. As in this case, that way of proceeding can facilitate the making of an agreement between claimants and respondents that leads to a consent determination.

150    Additionally, the State could not be required to give up the privilege in a document which it had no intention of filing in the proceeding, especially in circumstances where it had decided that it would not be contesting connection at a hearing on country, and indeed would not be attending the hearing on country. It was not obliged to give the Martin report, for example, to Oil Basins. And, when closely analysed, the solicitors for Oil Basins never suggested that the State was so obliged. They and their client can be taken to have respected the privilege claim made by the SSO on behalf of the State at all times.

151    In other words, the solicitors for Oil Basins well understood, as indeed Oil Basins must have, that if they wished to lead anthropological evidence in the proceeding or rely on anthropological views going beyond those that had been shared with them, then it was up to Oil Basins to obtain that anthropological advice. At no time did Oil Basins do that.

152    As to the primary issue raised by ground 2, we consider that the substance and the form of what the primary judge found did not involve him finding, as submitted by Oil Basins, that, in effect, when the State is prepared to agree to orders in terms of a consent determination, not only is the Court entitled to rely on the position taken by the State, but each other respondent is obliged to do so, and acts unreasonably if it does not. His Honour made no such finding, in form, substance or “in effect”.

153    What his Honour found was that having regard to the sequence of events and the information available to it, at the time Oil Basins filed its notice of intention to participate in the proceeding on 19 March 2013, it was unreasonable of it to put all issues as to connection in issue. This was a finding that involved a careful assessment by the primary judge of all relevant factors, as the account of his Honour’s reasoning provided above discloses.

154    What the facts show is that Oil Basins had a motivation to contest connection because, if there were a finding that native title did not exist throughout the claim area, including over the area proposed to be the subject of its permit, then Oil Basins would not be required to engage with the claimants under the right to negotiate procedures under the NTA in respect to any future act thereafter, such as an application for a production licence over the permit area. But, the motivation to contest native title should not be confused with the question whether Oil Basins actually had reasonable grounds for contesting connection under s 223 NTA at material times.

155    So far as the grounds for contesting connection at a hearing to commence on 2 July 2013 are concerned, as his Honour found, Oil Basins at all material times when it filed the notice on 19 March 2013 and later filed the amended responses, did not have and could not have considered it had reasonable grounds for believing it could successfully resist a connection claim. What grounds it put forward – the alleged “significant deficiencies” – were anything but compelling.

156    While Hunt & Humphry in their correspondence to the SSO initially raised questions about the single society issue (and also about the precise northern boundaries of the claim area), based on the final report of Dr Palmer and the observations made on behalf of the State in the email dated 30 January 2013 to all respondents, which Oil Basins received on 18 February 2013 following its joinder, the position of Oil Basins as to the view of the State on that issue is entirely undermined by the fact, as his Honour found, that immediately after being requested to do so, Ms Begg on behalf of the SSO, met with Mr Humphry, solicitor for Oil Basins, on 1 February 2013 to explain exactly what the view of the State was and why it had formed it. Ms Begg’s advice was detailed and comprehensive. That can be drawn from the clear and detailed terms of Mr Humphry’s email to Mr McGrath of Oil Basins of 1 March 2013.

157    As of 19 March 2013, as his Honour also found: not only did Oil Basins appreciate that the State was proposing a consent determination for consideration by all respondents, but also that it was doing so on the basis that it had taken the advice of Dr Martin, who had raised certain issues about the single society aspect of the claim; and that Dr Palmer and Dr Martin had later met in Canberra to discuss those issues at some length and that Dr Martin was satisfied as to the points made by Dr Palmer; that subsequently the State obtained further advice from another anthropologist (because Dr Martin was not available at that time) which did not produce a change of view; and that the State had taken the advice of senior counsel, the Solicitor-General of the State of Western Australia, who advised the connection claim “was likely to succeed” at a contested hearing.

158    It was plain that the State, to put it mildly, had conveyed the considered opinion that connection could not be defended at trial.

159    Notwithstanding all of that, Oil Basins, without relying on any other anthropological opinion, begged to differ and filed its notice on 19 March 2013 putting all connection matters in issue, and thereafter proceeded on that basis until late May 2013 when it decided, in effect, to join in the consent determination agreement of all other respondents, preserving its right to protect its interests under s 225(c) and (d) of the NTA.

160    It became clear in the course of the oral submissions of senior counsel for Oil Basins on the hearing of the appeal, that the only way that Oil Basins could justify its position to proceed to trial on connection issues as at 19 March 2013, was on the basis that, when Dr Palmer was cross-examined at trial, he would agree to withdraw his expressions of opinion about the single society issue and the boundary issue set out in his final report.

161    In light of the facts, which were well known by Oil Basins at material times, and recounted above, that Dr Palmer had already discussed the competing issues on the single society issue with Dr Martin, that the State had accepted those various expressions of opinion, that the advice of another anthropologist had also been taken in relation to that issue, and that the State had advice from the Solicitor-General to the effect that connection claims would likely succeed at trial, Oil Basins could not, on any considered view, have reasonably believed that in cross-examination Dr Palmer would be led to concede his opinions were wrong or unreliable.

162    At the very least, we do not consider that it can be said that his Honour erred, in fact or in law, or took into account any irrelevant factor or failed to consider any relevant factor when he exercised the discretion to award costs, and indemnity costs, against Oil Basins as he did.

163    In our view, it was open to his Honour to find that it was both unreasonable, in all of the circumstances, for Oil Basins on 19 March 2013 to file the notice of intention to participate, putting in issue all connection issues, but also subsequently to withdraw its defence of the connection issues without offering any adequate basis for explaining why it had done so, apart from the fact that it was concerned that it might, if it pressed on with its opposition to the claimants’ removal application, be removed as a party.

164    The simple position was that there was no new information available to Oil Basins between 19 March 2013 and the time of its later change of position to explain why it should then have conceded the connection claim of the claimants.

165    If Oil Basins had been removed as a respondent party to the proceeding, it could have appealed that decision in order to remain as a party to the proceeding. Its expression of concern concerning removal as a party is of little weight in light of all the competing considerations as an explanation for the change of position.

166    We consider that the combination of events that both saw the notice filed on 19 March 2013 and the change of position on 20 May 2013, all justified the finding that his Honour made that the conduct of Oil Basins at material times was unreasonable.

167    Therefore, for the purposes of s 85A(2) of the NTA, his Honour was entitled to make a finding that the conduct of Oil Basins at material times was unreasonable and to make the costs order that he did. No error in fact or in law in terms of the principles espoused in House v The King (1936) 55 CLR 499 is disclosed.

168    The finding of unreasonableness having been open to his Honour, the additional finding of his Honour that the principles surrounding the making of an indemnity costs order were also satisfied is also not open to question. Indeed, Oil Basins does not contend that, if it should fail on the unreasonableness point, the finding in relation to indemnity costs should be disturbed. Nor is there any separate challenge to the order that such costs be paid forthwith.

169    Similarly, there is no separate challenge by Oil Basins, should the unreasonableness point not be decided in its favour, to his Honour’s finding that the costs should be payable from 19 March 2013. In our view, for the reasons that his Honour gave, that is an appropriate finding.

170    In these circumstances, ground 2 must fail.

Did the primary judge err in holding that in all the CIRCUMSTANCES it was unreasonable for Oil basins to put connection in issue?

171    Oil Basins appeals, by ground 3, on the basis that the primary judge erred in holding at [59] and [82] that in all the circumstances it was unreasonable for it to put connection in issue, alleging material circumstances as being:

(1)    its beliefs about the existence of deficiencies in the claimants’ case;

(2)    the evidentiary material available to it;

(3)    the particular impact of a determination of native title on it; and

(4)    the State refusing to give it access to all relevant anthropological evidence and legal advice.

172    By its written submissions, Oil Basins says the reasonableness of a party’s conduct must be judged in the context of the party’s knowledge or belief at the time the conduct occurred, and must take into account its legitimate interests.

173    Oil Basins contends that the primary judge erred by focusing on the parens patriae obligations of the State, which were irrelevant to an assessment of the reasonableness of Oil Basins’ conduct, and did not take into account the considerations that were relevant, being:

(a)    Oil Basins’ beliefs about the deficiencies in the case on connection (as to which it refers to the affidavit of Mr McGrath of 7 June 2013 at pp 15-16, [67]-[72]);

(b)    the evidentiary material available to Oil Basins, including the Martin report, the draft Palmer report and the final report (as to which see the reasons for judgment at [33]);

(c)    the particular, if not unique, impact of a determination of native title on Oil Basins; and

(d)    the State refusing to give it access to all the anthropological and legal advice that the State had relied upon in deciding to concede the issue of connection (as to which see the reasons at [54]).

174    Oil Basins contends the primary judge erred in finding Oil Basins did not have a “real issue” with connection (see reasons at [57]) – a submission developed further under ground 6 below.

175    Oil Basins says its belief that the evidence was lacking in respect of connection to that part of the claim which overlapped its permit was supported by the findings of the NNTT on the future act decision in Backreef Oil Pty Ltd and Oil Basins Limited/JW (name withheld) and Ors on behalf of Nyikina and Mangala/ Western Australia [2013] NNTTA 9 at [69]. Oil Basins says on the evidence in those proceedings, which included the final report, the NNTT found there was an “absence of specific evidence about the extent to which the native title party exercises its rights to use and enjoy the area within the proposed permit, as opposed to the claim area in general …”; a finding that Oil Basins says was not disturbed on appeal in Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432.

176    Oil Basins says that:

    following its joinder it was provided with the Martin report. No further evidence was subsequently provided to it to displace Oil Basins’ belief in the deficiencies in the claimants’ claim;

    its decision to contest the claimant application was made having considered information including that contained in the Martin report, the draft Palmer report, the Noonkanbah report and Dr Palmer’s final report; and it believed that no other non-State respondent had access to the Martin report;

    the Martin report, the Noonkanbah report and the draft Palmer report were not before the primary judge (by reference to what was said at [8] and [33] of the reasons). His Honour, however, inferred that the material could not have been the basis for any reasonable opposition to the claim, as set out in the reasons at [54]-[58], [94] and [108].

177    Oil Basins submits the primary judge erred in holding, as he did at [59], that Oil Basins had no legitimate reason to contest the case on connection. It says it had significant commercial interests, distinct from the other respondents, and it sought to protect those interests by considering for itself whether to consent to a determination on native title over the overlap area. It says a determination of native title over the overlap area where the permit applied would have a significant impact on its commercial interests, notwithstanding that its permit was to be recorded in the consent determination. The grant of any subsequent production titles required to develop any discovery on the permit would give rise to compensation liabilities and significant costs and delays, including as a result of the need to comply with the future act provisions of the NTA. Those consequences could be avoided by obtaining a determination of no native title in the overlap area.

178    Oil Basins also appeals, by ground 4, on the related basis that the primary judge erred in holding, at [59] and [82], that in all the circumstances it was unreasonable for it subsequently to concede the claimants’ case on connection, the material circumstances being:

(1)    the refusal of the State and the claimants to negotiate further with Oil Basins; and

(2)    Oil Basins’ belief that it would be removed as a party if it did not concede the claimants’ claim on connection.

179    Oil Basins say that the material circumstances in this respect were:

(1)    the refusal of the State and the claimants to negotiate further with Oil Basins in relation to the issue of connection (as referred to at [79] of the reasons); and

(2)    Oil Basins’ belief that it would be removed as a party if it did not concede the claim on connection (as referred to at [79] and [90]-[91] of the reasons).

180    Oil Basins says the primary judge found that it changed its position without any, or any satisfactory explanation. However, it says, the reasons for the change in its position were explained in Mr McGrath’s affidavit of 7 June 2013 at 20, [109]-[110]. Oil Basins says it had considered the commercial and legal risks of maintaining its position and concluded it to be in its best interests to concede the case on connection in order to remain as a party; which was a rational and reasonable decision it was entitled to make.

181    Oil Basins says this evidence could have been but was not challenged and his Honour accepted the evidence of Mr McGrath to the effect that Oil Basins believed it would be removed if it did not concede connection. His Honour rejected, however, without giving reasons, Mr McGrath’s evidence that Oil Basins conceded connection to remain a party to the proceedings, at [79], [90]-[91] of his reasons. Oil Basins contends that finding that there was no satisfactory reason for Oil Basins’ change in position was not open to his Honour.

182    In light of the findings we have made above in respect of ground 2, grounds 3 and 4 must necessarily fail.

183    We have explained above that the primary judge, notwithstanding the so-called significant deficiencies in the claimants’ case, was justified in making the finding that it was unreasonable for Oil Basins to put connection in issue at material times.

184    While it may be accepted that there was a motivation for Oil Basins to contest native title, because a determination that native title did not exist on the area over which its permit would apply would mean that Oil Basins would not be required to enter into right to negotiate dealings with the claimants under the NTA in respect of future acts (such as a production licence), as noted above that consideration should not be confused with the question whether it actually had reasonable grounds to contest the claimants’ connection case.

185    In the result, again as noted above, senior counsel for Oil Basins acknowledged at the hearing of the appeal that for Oil Basins to succeed in its defence of the connection claim it would have been necessary for it to demolish the relevant opinions expressed by Dr Palmer in the course of his cross-examination. In all the circumstances, as observed above, Oil Basins could not on any considered view, have reasonably believed that in cross-examination Dr Palmer would be led to concede his opinions were wrong or unreliable.

186    In circumstances where that was the only basis upon which Oil Basins could contend that it was reasonable for it to put connection in issue, it was open to the primary judge to find, as he did, that it was unreasonable for Oil Basins to put connection in issue by its notice of 19 March 2013.

187    Similarly, as found above, it was unreasonable for Oil Basins subsequently to concede the claimants’ case on connection in all of the circumstances, there being no adequate explanation proffered as to why it changed its position.

188    The only suggestion put forward was that Oil Basins, by Mr McGrath, feared that if it did not accept the alternative proposal of limiting its involvement as a party, it might be removed as a respondent party altogether. As we have said above, if that removal order had been made it would have been open to Oil Basins to challenge it on appeal.

189    We consider that even taking into account that assertion made by Mr McGrath (and accepting he was not challenged as to his belief) the objective circumstances in which the withdrawal of position occurred in late May 2013 were such that his Honour was entitled, viewing all of the circumstances objectively, to make the finding that it was unreasonable for Oil Basins subsequently to concede the claimants’ case on connection without adequate explanation.

190    The observations of the NNTT on the future act decision are of little or no relevance in these circumstances, dealing as they did with a future act decision, not a determination of native title.

191    In those circumstances, no error of fact or law in a House v The King sense is demonstrated and grounds 3 and 4 must fail.

Did the primary judge err in holding that it would not be appropriate for the appellant to contest the claimants’ case on connection simply by testing the expert witness in cross-examination and making submissions on the evidence?

192    Oil Basins, by ground 5, says that the primary judge erred in holding that it would not be appropriate for Oil Basins to contest the case on connection by testing the expert evidence in cross-examination and making submissions on the evidence.

193    Oil Basins says this conclusion appears to be based on a finding that Oil Basins had no “real issue with the matter of connection”, as stated by his Honour at [57]; and as discussed further under ground 6 below, this finding was erroneous.

194    Oil Basins contends his Honour erred in taking into account the fact that it had not obtained its own anthropological report. It says it was not obliged to do so and there were sound reasons not to. Obtaining its own expert report would have required Oil Basins to have full access to and cooperation from the claimants, which it did not have, and would likely have taken several months at least. Given its relatively late joinder, it would have delayed proceedings and this would have been contrary to the interests of the claimants and was likely to have resulted in the removal of Oil Basins.

195    Oil Basins says that:

    nonetheless it identified various “deficiencies”, listed by his Honour at [92], upon which it could properly make submissions on Dr Palmer’s final report and cross-examine Dr Palmer to test his evidence;

    the Court was not inevitably bound to accept the opinion of Dr Palmer going to the ultimate issue of connection and it was therefore not unreasonable for Oil Basins to proceed as it did.

196    The substance of this ground of appeal has already been dealt with in the course of dealing with grounds 2, 3 and 4 above and for the reasons given above in discussing those grounds, this ground must also necessarily fail.

197    For the reasons given above, in the particular circumstances of this case any suggestion that, by cross-examination of Dr Palmer, Oil Basins would be in a position to prevent the claimants’ from proving connection had no reasonable foundation.

198    It was open to his Honour in all of the circumstances before him to find that it was unreasonable for Oil Basins to have proceeded on this basis.

199    In those circumstances his Honour was entitled to conclude that Oil Basins did not have a “real issue” with connection, as he said at [57]-[58] of his reasons.

200    We should say we also accept the claimants’ submission that it is simply incorrect for Oil Basins to say it could not have obtained its own anthropological report without “full access to and cooperation from the claimants”. State parties in native title proceedings and, on occasions, other respondent parties engage anthropologists to provide expert anthropological reports which assess, review and respond to the anthropological reports filed by claimants. The State did just this when it engaged Dr Martin and obtained his report. Oil Basins could have done likewise if it wished to pursue its defensive position. It chose not to do so. Further, it did not seek the opportunity to do so.

201    In these circumstances, ground 5 must fail.

Did the primary judge err in holding that none of the matters relied on by Oil basins as reasonable grounds for contesting the claimants’ case on connection amounted to a significant deficiency in the claimants’ case?

202    Oil Basins, by ground 6, says the primary judge erred in finding, at [94], that none of the “deficiencies” listed at [92] of his reasons, relied upon by Oil Basins as reasonable grounds for contesting the claimants’ case on connection, amounted to a significant deficiency.

203    Oil Basins contends his Honour ought to have found that the matters listed at [92] of his reasons constituted significant deficiencies in the case or at least were sufficient to justify continuing to oppose the claim to the extent that it covered the overlap area.

204    Oil Basins says, for example, one of the deficiencies identified was “the apparent disagreement among experts on the evidence in support of the applicant’s claim”. It says that this disagreement was evident on the face of the final report of Dr Palmer.

205    Oil Basins contends his Honour based his findings at [94] on the fact that the State had assessed and accepted the claimants’ evidence. His Honour considered that the final report resolved all of the matters at [92] relied upon by Oil Basins.

206    In this regard, Oil Basins contends his Honour’s findings are inconsistent with the State’s email of 30 January 2013 (sent to Oil Basins on 18 February 2013 after it was joined), which stated that “we do not agree with the conclusion in Dr Palmer’s report that there was one Nyikina Mangala society at the time of sovereignty”. Oil Basins says this statement was made after the filing of the final report in December 2012.

207    Further, and significantly, Oil Basins contends, the State’s conversations with Oil Basins’ solicitors indicated in March 2013 that the State still considered aspects of the final report to be unconvincing, even after the additional anthropological information and legal advice had been obtained by the State.

208    The claimants submit that the primary judge provided cogent reasons (at [94]-[96]) for concluding that none of the matters raised by Oil Basins amounted to a “significant deficiency” in their case on connection. In particular, his Honour was entitled to conclude that Dr Palmer’s final report had adequately addressed Dr Martin’s concerns about the existence of a single society at sovereignty. The claimants note that his Honour said that Dr Palmer’s opinions were supported by detailed reasons, including reference to, analysis of and answers to Dr Martin’s opinion on the single society issue. In addition, his Honour was aware that the State had obtained advice from a second anthropologist who took a different view from that of Dr Martin.

209    The claimants also contend that the State had communicated to Oil Basins its view that there was no evidence available to it that could be presented in opposition to the claim and that on the advice of the Solicitor-General, the State considered that, in spite of any misgivings it may have had about Dr Palmer’s report, the claim would succeed in a contested hearing, as his Honour explained at [51].

210    This ground canvasses issues that have already been dealt with in the course of finding that grounds 2, 3, 4 and 5 must fail and must also necessarily fail.

211    It was, in our view, and as discussed above, open to his Honour to find that, in all the circumstances as they existed at material times, none of the alleged deficiencies constituted a “significant deficiency”. His Honour’s conclusion that none of the matters listed amounted to a significant deficiency in the claimants’ case on connection cannot be faulted and does not show an error of a House v The King type.

212    As we have stated above, the reality was that the final report of Dr Palmer had addressed the concerns of Dr Martin. The State had obtained additional anthropological advice in relation to the single society issue. The Solicitor-General of Western Australia had given advice in respect of the matter and advised that the claim would likely succeed in a contested hearing.

213    In circumstances where Oil Basins was not taking its own anthropological advice, had not filed and was not proposing to file an anthropological report, and according to its statement of its intention, intended merely to cross-examine the expert, Dr Palmer, whose final report was only completed following a conference about connection issues with the State’s expert, Dr Martin, one would have to say, as his Honour in effect did, that none of the matters raised by Oil Basins amounted to a significant deficiency in the claimants’ case on connection.

214    As explained above, nothing in the outcome of the future act proceeding in the NNTT or observations of the NNTT in that proceeding could be considered to have had any great relevance to the assessment his Honour was required to make.

215    At best there were speculative lines of cross-examination, but that was all. As we have said above, in the particular circumstances that prevailed, there could be no reasonable basis to any belief that Dr Palmer would concede that his relevant opinions were wrong or unreliable.

216    In these circumstances, ground 6 must fail.

Did the primary judge err in finding that oil basins had been informed that the state had been advised that the claimants’ claim was very likely to succeed?

217    Oil Basins, by ground 7, says that the primary judge erred in finding, at [30], that the appellant had been informed that the State had been advised that the claimants’ claim was “very likely” to succeed, when Oil Basins had simply been informed that the State had been advised that the claim was “likely” to succeed.

218    The written submissions of Oil Basins on this ground are, understandably, brief. Oil Basins says that on the evidence available, his Honour ought to have found that Oil Basins had been advised that the State considered that the claim would be “likely” to succeed in a contested hearing.

219    As the claimants observe in their submissions, this challenge is nothing more than a matter of semantics and his Honour’s reasons at [30] must be read in conjunction with his reasons at [49]-[53]. At [51], his Honour sets out the terms of Mr Humphry’s email of 7 March 2013 to Oil Basins in which he repeats the SSO’s advice that the State considers, on senior counsel’s advice, that the claim would succeed in a contested hearing. There is nothing in this ground of appeal.

220    In these circumstances, ground 7 must fail.

did the primary judge err in finding that oil basins no longer believed that it had reasonable grounds for contesting the claimants’ case?

221    Oil Basins, by ground 8, says that his Honour erred in finding, at [95], that Oil Basins no longer believed that it had reasonable grounds for contesting the case on connection.

222    Oil Basins contend this finding is contrary to the affidavit evidence of Mr McGrath in his first affidavit of 7 June 2013 at pp 15-20, [67]-[111] and especially at [95] and also in his second affidavit of 29 July 2013 at p 6, [12]. Oil Basins says Mr McGrath’s evidence was not contested. Thus, Oil Basins submits that his Honour ought to have found that Oil Basins continued to believe it had reasonable grounds for contesting connection. However, it decided to concede the case for other reasons as outlined above under ground 4.

223    As the claimants in their submissions correctly observe, however, this challenge misstates the primary judge’s finding at [95]. His Honour’s comments were directed towards the fact that Oil Basins had never re-assessed its position in a way which would explain its about face in abandoning its opposition to the case on connection.

224    In these circumstances, ground 8 must fail.

conclusion and orders

225    For these reasons the appeal should be dismissed with costs.

226    So far as the costs of the appeal are concerned, because the appeal is to be dismissed we do not need to deal with submissions made on behalf of Oil Basins that, in the event it was successful in the appeal, there were a range of reasons, including public interest litigation reasons, why it should have a costs order in respect of the application for leave to appeal and the appeal.

227    In the circumstances, we consider it appropriate that the costs of the appeal of Oil Basins, and the application for leave to appeal, should follow the event, so that they should be awarded in favour of the claimants.

228    The State does not seek a costs order on the appeal.

229    The appropriate orders are that:

1.    The appeal be dismissed.

2.    The appellant pay the first to tenth respondents’ costs of the appeal to be taxed, if not agreed.

Associate:

Dated:    17 November 2014